Next in an occasional series on copyright — the nom de plume
She writes as Lisa / Smallest Leaf. She always has. But when the time came to branch out beyond her well-known genealogy blogs to a QuickGuide on Croatian Genealogy, she stopped to think. How, she wondered, would the use of a “pen name” affect her copyright to her work?
And so, reader Lisa / Smallest Leaf, asks:
I’m thinking of using my alias on this little publication mainly because of name recognition (although I also like keeping it private). Is the use of a “pen name” an issue with regard to copyright? Can I place “©2012, copyright Lisa / Smallest Leaf. All rights reserved.” at the bottom of the publication and have it mean anything since I don’t legally own the name “Lisa / Smallest Leaf?”
Fortunately, the answer is an unqualified yes. There’s no legal reason why a writer can’t use a pen name — a pseudonym — and still get copyright protection for everything she writes. It may have a small effect on the copyright term (how long the copyright lasts), and everyone who writes for pay should register the for-pay works with the U.S. Copyright Office and probably under his or her real name. But those are the only real considerations.
Here’s the deal:
Copyright protects whatever you create — whether it’s something you write, a painting you paint, an architectural drawing, a photograph. As the U.S. Copyright Office explains, it “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.”1
And the protection you get is automatic: you don’t have to use the copyright symbol, or a date, or say anything about the rights that are reserved. All of those things are now automatic, and they exist from the moment that your work is put into some tangible form.2 It’s still a good idea to include that information, though, since it serves to put everybody who sees the work on notice that the work is protected by copyright — no copyright infringer can ever claim he or she didn’t know the work was copyrighted.3
Nothing in the copyright statute, 17 U.S.C. § 101 and following, says anything about using your real name when you create the work. In fact, the statute specifically allows the use of a pseudonym. It defines a “pseudonymous work” as a work on the copies … of which the author is identified under a fictitious name.4 It has a specific provision for how long a work is protected if it’s written anonymously or under a pseudonym.5 It has special provisions for registering a copyright if it’s under a pseudonym.6 It even provides a fee structure if you decide you want to identify yourself later.7
The use of pen names is so common that the Copyright Office has a separate fact sheet about pseudonyms:
An author of a copyrighted work can use a pseudonym or pen name. A work is pseudonymous if the author is identified on copies or phonorecords of the work by a fictitious name. Nicknames and other diminutive forms of legal names are not considered fictitious. Copyright does not protect pseudonyms or other names.
If you write under a pseudonym but want to be identified by your legal name in the Copyright Office’s records, give your legal name and your pseudonym on your application for copyright registration. Check “pseudonymous” on the application if the author is identified on copies of the work only under a fictitious name and if the work is not made for hire. Give the pseudonym where indicated.
If you write under a pseudonym and do not want to have your identity revealed in the Copyright Office’s records, give your pseudonym and identify it as such on your application. You can leave blank the space for the name of the author. If an author’s name is given, it will become part of the Office’s online public records, which are accessible by Internet. The information cannot later be removed from the public records. You must identify your citizenship or domicile.
In no case should you omit the name of the copyright claimant. You can use a pseudonym for the claimant name. But be aware that if a copyright is held under a fictitious name, business dealings involving the copyrighted property may raise questions about its ownership. Consult an attorney for legal advice on this matter.
Works distributed under a pseudonym enjoy a term of copyright protection that is the earlier of 95 years from publication of the work or 120 years from its creation. However, if the author’s identity is revealed in the registration records of the Copyright Office, including in any other registrations made before that term has expired, the term then becomes the author’s life plus 70 years.8
Now if you read that carefully, there are a bunch of “gotchas” in that fact sheet to think about:
• First, the copyright doesn’t protect the pen name itself. You can’t copyright a name — or, in fact, any words, phrases, symbols, or designs. If you want that kind of protection, you’re looking at trademark, not copyright.9
• If you don’t use your real name in registering the copyright, you may run into trouble down the road proving you own the copyright. That shouldn’t be a problem for Lisa / Smallest Leaf, since her identity is known to her publisher. But keep it in mind if you’re planning on using a pseudonym for some self-published work.
• And the copyright term changes if you use a pseudonym. Usually, copyright lasts for the life of the author plus 70 years. If you publish something at age 30, and you live to age 90, you’d have a total of 130 years of protection (the 60 years of your life after the work was published and 70 years after your death). If you use a pseudonym, it’s 95 years from publication, so you’d lose some years. That may not be a consideration for most of us, and you can get around it by registering the copyright.
True, registration isn’t required. But — like putting the notice on the work — it’s a good idea. It isn’t terribly expensive — right now it’s $35 to file online10 — but it makes a world of difference if you ever need to go after a copyright infringer. It’s proof that you’re the one who created the work, you can’t sue for infringement if you don’t register, you can’t get statutory damages or attorney’s fees if you don’t register11 — and you can register under your own name, and get back the years you might lose by publishing with a pseudonym.
So go ahead and use that pen name if you’d like.
Image: Open Clip Art Library (modified)
- U.S. Copyright Office, “FAQs: What does copyright protect?,” (http://www.copyright.gov : accessed 1 Jan 2013). ↩
- Ibid., “When is my work protected?” ↩
- U.S. Copyright Office, “Circular 1: Copyright Basics,” PDF version at p. 4 (http://www.copyright.gov : accessed 1 Jan 2013). ↩
- 17 U.S.C. § 101. ↩
- 17 U.S.C. § 302(c). ↩
- 17 U.S.C. § 409. ↩
- 17 U.S.C. § 708. ↩
- U.S. Copyright Office, “Pseudonyms,” PDF factsheet (http://www.copyright.gov : accessed 1 Jan 2013). ↩
- U.S. Copyright Office, “FAQs: How is a copyright different from a patent or a trademark?,” (http://www.copyright.gov : accessed 1 Jan 2013). ↩
- Ibid., “FAQs: What is the registration fee?” ↩
- U.S. Copyright Office, “Circular 1: Copyright Basics,” PDF version at p. 7. ↩